Support of Ending Unlawful CDC Mandate
CHARLESTON — West Virginia Attorney General Patrick Morrisey on Tuesday joined a multistate effort in asking the United States Court of Appeals for the 11th Circuit to affirm a lower court’s ruling that the Centers for Disease Control and Prevention lacks statutory authority “to require that virtually all persons wear masks while traveling.”
“The U.S. District Court Middle District of Florida made the correct decision, ruling the CDC’s nationwide mask mandate in public transportation was unlawful,” Attorney General Morrisey said. “This is another case of a federal agency overstepping its boundaries and deciding what should be left to state and local governments to decide.”
In the brief filed in the U.S. Court of Appeals for the 11th Circuit, the attorneys general argue that the CDC’s unlawful mandate exceeds the agency’s authority in several ways.
First, the CDC grounds its authority to issue a mask mandate in its power to require “sanitation” measures under 42 U.S.C. § 264(a). That authority cannot support the mandate.
Additionally, according to the statute, CDC cannot demand that domestic travelers be examined without evidence that they are carrying disease—but that is what the mandate requires, a visual inspection of every traveler without any individualized suspicion.
The brief also argues that the mandate is invalid because it failed to go through notice and comment procedures.
The CDC rule is arbitrary and capricious, with numerous exceptions that the agency did not explain or justify. Beyond that, the rule violates the agency’s own regulations. The brief states: “CDC regulations say that it cannot act unless it finds local measures inadequate. But here, CDC never even studied local measures, much less developed a method to determine whether those measures are adequate.”
Attorney General Morrisey joined the Florida-led amicus brief with Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Texas, Utah and Virginia.